Procopos v National Director of Public Prosecutions (401/07) [2008] ZASCA 124; 2009 (1) SACR 468 (SCA) ; [2009] 1 All SA 255 (SCA) (29 September 2008)

Procopos v National Director of Public Prosecutions (401/07) [2008] ZASCA 124; 2009 (1) SACR 468 (SCA) ; [2009] 1 All SA 255 (SCA) (29 September 2008)

The Supreme Court of Appeal held that the respondent must prove on a balance of probabilities that the appellant received an affected gift from the defendant for a restraint order to be made against her assets. The evidence did not establish that the appellant received any gift, nor did section 16(1) apply, as there was no transfer of property for consideration significantly less than the value of the property. The appellant's and defendant's affidavits were not so improbable as to be rejected without cross-examination. Therefore, except for the money remaining in the Absa bank account, there was no basis for a restraint order against the appellant's other assets. The order of the High...

Citation
[2008] ZASCA 124
Parties
Appellant: Angelina Procopos; Respondent: National Director of Public Prosecutions
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
29 September 2008
Case Number
401/07
Procedural Posture
Civil Appeal / Appeal From High Court, Pretoria (r D Claassen J)
Outcome
Appeal allowed in part; cross appeal dismissed. The restraint order is set aside except as it relates to the appellant's Absa bank account. The matter is remitted for cross-examination of the appellant and defendant on their affidavits.
Judges
Farlam, Mthiyane, Ponnan, Maya, Mhlantla
Legal Topics
Prevention of Organised Crime Act, Restraint Order, Affected Gift, Confiscation Order, Rule 6 5 G, Burden of Proof
Criminal Law Civil Procedure Prevention of Organised Crime Act Restraint Order Affected Gift Confiscation Order Rule 6 5 G Burden of Proof

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Parties

Angelina Procopos

Appellant

National Director of Public Prosecutions

Respondent

Procedural Posture

Civil Appeal / Appeal From High Court, Pretoria (r D Claassen J)

Legal Issues

  1. 1 Whether the appellant received an 'affected gift' as defined in the Prevention of Organised Crime Act.
  2. 2 Whether section 16(1) of the Act applies to the appellant's receipt of funds.
  3. 3 Whether the respondent must prove on a balance of probabilities that an affected gift was made, or if reasonable grounds suffice.

Ratio Decidendi

The Supreme Court of Appeal held that the respondent must prove on a balance of probabilities that the appellant received an affected gift from the defendant for a restraint order to be made against her assets. The evidence did not establish that the appellant received any gift, nor did section 16(1) apply, as there was no transfer of property for consideration significantly less than the value of the property. The appellant's and defendant's affidavits were not so improbable as to be rejected without cross-examination. Therefore, except for the money remaining in the Absa bank account, there was no basis for a restraint order against the appellant's other assets. The order of the High...

Court Disposition

Appeal allowed in part; cross appeal dismissed. The restraint order is set aside except as it relates to the appellant's Absa bank account. The matter is remitted for cross-examination of the appellant and defendant on their affidavits.

Orders

  • Except insofar as the order of the court a quo relates to the appellant’s banking account at the Sunnyside branch of Absa Bank, the appeal is allowed with costs.
  • The order of the court a quo in respect of the appellant’s assets mentioned in paragraphs 12.2 and 12.3 of the judgment is set aside and replaced by an order that the defendant and the first respondent are to be subject to cross-examination in respect of the evidence set forth in their affidavits.